KARNATAKA UPA- LOKAYUKTA v. DR ANILKUMAR BALAKRISHNA KULKARNI S/O BALAKRISHNA KULKARNI

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ORAL ORDER

(PER: THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR) This petition is filed challenging the Order dated 03.03.2023 passed in Application No.10550/2020 by Karnataka State Administrative Tribunal, Belagavi.

2. The brief facts of applicant's case as pleaded before the Karnataka State Administrative Tribunal are as under;

In pursuance of a complaint given by Sri S.Y. Tisagappagaol, Junior Health Assistant, Gokul Taluk, Belagavi District and three others alleging that after the audit of accounts of the National Leprosy Control Centre at Ramadurga for the period from 1997 to 1995 it was noticed that excess payment was made to the complainant and three others. Accordingly, respondent No.1 suggested to recover the said excess amount. In this regard, the applicant called them and informed that if they totally pay Rs.12,000/- he will see that recovery will not be made from them. The complainant not willing to pay the amount to the applicant,

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lodged a complaint before the Lokayuktha on 27.12.2002. On the basis of the complaint, a case was registered in Cr.No.19/2002 against the applicant for the offence punishable under section 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. A trap was laid and the amount was seized from one Sri Pannaalgad, a Group 'D' employee who has remitted the said amount to State Bank of Mysuru. In view of registration of case in Cr.No.19/2002, a report was submitted against the applicant seeking entrustment of the matter to hold departmental enquiry. Respondent No.1, on 05.12.2003 entrusted the matter to the Lokayukta under Rule 14A of Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 (hereinafter referred to as 'KCS (CCA) Rule, 1957' as at Annexure-A1. Since there was no progress for a period of 03 years after entrustment and having noticed that the allegations made in the complaint does not come in the purview of misconduct vide notification dated 07.01.2006 the entrustment order was withdrawn by respondent No.2. In the meantime, in the Criminal Case, on 17.02.2007 the

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applicant was acquitted from the charges as at Annexure- A3. In view of the acquittal order passed, respondent No.1 passed an order on 10.12.2010 exonerating the applicant from the charges as at Annexure-A4. Further the applicant was absolved from the disciplinary proceedings as at Annexure-A2. Though the entrustment order passed under Rule 14A of KCS (CCA) Rule, 1957 was already withdrawn by respondent No.1 and further when the applicant has already exonerated from trap charges, after 9 long years, respondent No.3 submitted a report dated 23.08.2011 under section 12(3) of the Karnataka Lokayuktha Act and sought for entrustment of the matter to initiate disciplinary proceedings against the applicant under Rule 14A KCS (CCA) Rule, 1957 as at Annexure-A5. Respondent No.1 without considering the aspect that the applicant has already been exonerated and the entrustment order passed under Rule 14A KCS (CCA) Rule, 1957 was already withdrawn as early as on 07.01.2006, without verifying the same as required under Rule 12(4) of Karnataka Lokayukta Act has passed the impugned order on 17.09.2011 by

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entrusting the matter to respondent No.3 to proceed against the applicant under Rule 14A of KCS (CCA) Rule, 1957. Respondent No.3 in turn nominated the respondent No.4 as enquiry officer who framed the articles of charges on 21.02.2012. The applicant before the enquiry officer has filed an application on 10.02.2020 regarding the maintainability of the disciplinary proceedings itself. Respondent No.4 after hearing the respective parties, has passed the impugned order by rejecting the application vide order dated 18.02.2020 as at Annexure-A11. The applicant aggrieved by the impugned entrustment order passed by respondent No.1 dated 17.09.2011 (Annexure-A6), the issuance of the impugned Articles of charges dated 21.02.2012 issued by respondent No.4 (Annexure-A7) as well as the impugned order in rejecting the application on 18.02.2020 by respondent No.4 (Annexure-A11) has filed the application before the Karnataka State Administrative Tribunal, Belagavi.

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3. Heard learned counsel for petitioners and learned AGA for respondent Nos.2 and 3.

4. Learned counsel for petitioners would contend that the applicant has questioned the very entrustment order dated 17.09.2011 issued by the Government and entrusting to conduct the departmental enquiry against the applicant under Rule 14(A) of Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 (hereinafter referred to as 'KCS (CCA) Rule, 1957' for brevity). and Articles of charges dated 21.02.2012. The said entrustment order on report submitted under Section 12(3) of the Karnataka Lokayuktha Act and it is passed only after examining the entire report as contemplated under Section 12(4) of the Karnataka Lokayuktha Act. Articles of charges were issued based on materials collected by the Investigating Agency and therefore, the applicant has no right to challenge the same. The Tribunal without considering these aspects has erroneously passed the impugned order. He further contended that after receiving the entrustment order dated 17.09.2011, The Assistant Registrar of Enquires-04,

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the Karnataka Upa-Lokayuktha, Bengaluru has been nominated as enquiry officer, who in turn framed the Articles of charges on 21.02.2012. The enquiry officer rejected the application filed by the applicant in a departmental enquiry on 18.02.2020 on the ground that the enquiry authority is not competent to pass orders holding that the entrustment order is bad in law. The Upa- Lokayuktha considered the observation note and forwarded the report under Section 12(3) of the Karnataka Lokayuktha Act. The Government as a competent authority examined the report submitted under Section 12(4) of the Karnataka Lokayuktha Act and entrusted the inquiry to Lokayuktha under Rule 14(A) of KCS (CCA) Rule, 1957 by the order dated 17.09.2011. The applicant ought to have brought to the notice of the Lokayuktha about the entrustment order dated 05.12.2003 and also withdrawal of the same. The withdrawing of Government order dated 05.12.2003 by the Government will not prevent the Lokayuktha from proceeding with the enquiry initiated pursuant to entrustment order dated 17.09.2011. The entrustment order

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will not give any cause of action to question the same. The Government order dated 10.12.2010 exonerating the applicant from trap case in view of the order of acquittal recorded by the Special Court, Belagavi in Special Case No.4/2004 is nothing to do with the disciplinary proceedings. Therefore, the impugned order passed by the Tribunal is liable to be quashed. On these grounds, he prayed to allow the petition.

5. Having heard learned counsels, the Court has perused the impugned order and other materials placed on record.

6. Respondent No.2 being the disciplinary authority exercising power under Rule 14A of KCS (CCA) Rule, 1957 has entrusted the matter vide order dated 05.12.2003 and after noticing that there is no progress made in the enquiry even after 03 years has withdrawn the order of entrustment by issuing a notification dated 07.01.2006. Even though, there is a withdrawal of order of entrustment, vide notification dated 07.01.2006 the

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petitioners continued the proceedings against the applicant and submitted report under Section 12(3) of the Karnataka Lokayuktha Act after lapse of 09 years from the date of alleged complaint and further after lapse of 03 years from the date of withdrawing the order. The applicant has been acquitted in the Criminal Case and respondent No.2 having considered the acquittal order has passed an order on 10.12.2010 exonerating the applicant from the trap charges. The petitioners, without verifying the said aspect, have submitted report under Section 12(3) of the Karnataka Lokayuktha Act seeking for entrustment of the enquiry under Rule 14A KCS (CCA) Rule, 1957. The disciplinary authority has already withdrawn the entrustment order by notification dated 07.01.2006 and therefore, it ought not to have acted upon the report submitted under Section 12(3) of the Karnataka Lokayuktha Act and entrusting the enquiry under Rule 14A KCS (CCA) Rule, 1957 to the petitioners. '

7. Considering the above aspects, the learned counsel for petitioners has not persuaded us from taking

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different view to that of the view taken by the Tribunal. In the result, the petition is dismissed.

Sd/-

(B.M.SHYAM PRASAD)

JUDGE

Sd/-

(SHIVASHANKAR AMARANNAVAR)

JUDGE

DSP

CT:VH

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